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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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In the consolidated cases of <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20151001_C324680_79_324680.OPN.PDF" target="_blank" rel="noreferrer noopener">People v. Sledge</a>, No. 324680, and People v. Collins, No. 324681, the Michigan Court of Appeals reversed the trial court’s denial of a motion by the Detroit Free Press to vacate an order precluding “all potential trial participants” from commenting to media about the cases (collectively “gag order”).  The court held that the gag order was overbroad and constituted an unconstitutional prior restraint on the freedom of speech and freedom of the press.

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This case arises from a failed project to construct a jail budgeted at $300 million in downtown Detroit due to cost overruns.&nbsp; Two individuals were indicted as a result of the failed jail project on two counts of common law offenses, MCL 750.505, and two counts of willful neglect of duty, MCL 750.478.&nbsp; The trial court, sua sponte, sealed the court record and entered a gag order.&nbsp; The court did not hold a hearing or make any findings of fact when it sealed the record and entered the orders.&nbsp; Thereafter, an attorney of the Detroit Free Press filed a motion to intervene and vacate the gag order.&nbsp; After a hearing in which the Detroit Free Press emphasized that the gag order was overbroad and constituted a prior restraint, the trial court granted the request to unseal the record, but denied the motion to vacate the gag order.

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In reversing the trial court’s decision, the Court of Appeals agreed with the Detroit Free Press that the gag order constituted an unconstitutional prior restraint on the freedom of speech and the freedom of the press under the First Amendment.&nbsp; The court held that the Detroit Free Press had standing to challenge the gag order as a gatherer of news and a recipient of speech, that prohibiting “all potential trial participants” from making any extrajudicial statements to the media was vague and overbroad, and that there was no clear showing that the exercise of First Amendment rights would interfere with the right to a fair trial.&nbsp; Additionally, the Court found that the trial court erred in failing to adequately justify the gag order in its opinion and order denying the motion to vacate the gag order and in entering the gag order sua sponte.

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Madelaine C. Lane

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COA: Gag order violated First Amendment

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COA: Gag order violated First Amendment

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